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VOL. 125 | NO. 59 | Friday, March 26, 2010

Tenn. Doctors Continue Pursuit of Malpractice Caps

By Tom Wilemon

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Tennessee doctors pushed for Congress to put caps on malpractice awards, but the health care reform bill signed into law this week by President Obama sets no such limits.

Now, the Tennessee Medical Association is pinning its hopes on the next General Assembly. The organization will question legislative candidates about malpractice caps, then post their stances on its Web site.

“It’s important as we go to the polls in November that if you are concerned about this that you find out what your candidate’s position is on medical liability reform,” said Dr. Michael Minch, president-elect of the TMA.

Tennessee is losing doctors – especially those who practice high-risk specialties – to states that have enacted malpractice caps, he said.

The TMA just released a survey of 120 state doctors. The survey, conducted during December and January, gauged the climate for practicing medicine in Tennessee since the passage of a 2008 state malpractice law.

That law reduced the number of “frivolous lawsuits,” said Minch, but it did not enact caps on non-economic damages.

Ninety-six percent of survey responders said defensive medicine costs remained a serious problem, while 87 percent said future physician supply was also a serious problem.

“Even though 60 percent of the states have some kind of cap on malpractice awards, we don’t have that here in Tennessee,” he said.

Physicians in high-risk specialties, such as OBGYN, neurosurgery and anesthesia, are more vulnerable to malpractice awards.

“Doctors of those kinds of specialties tend to go to states where they have some protection,” Minch said. “Mississippi has it. Texas changed their law and they noticed an increase in the number of doctors coming to their state.”

However, these laws are being challenged in the courts.

Supreme courts in Missouri and in Georgia handed down decisions this week regarding laws passed in 2005 that set limits on non-economic damages.

The Georgia Supreme Court on Monday struck down a law that capped awards at $350,000. Chief Justice Carol W. Hunstein wrote in the majority opinion that the caps “violate the constitutional right to trial by jury.”

The Missouri Supreme Court on Tuesday let stand a similar law with the same $350,000 cap, but it did narrow the scope of the law so the cap applies only to plaintiffs who suffered injuries after 2005.

The 2008 law passed in Tennessee created a notification and certification process that decreases the number of defendants in malpractice suits.

“Certainly, it has been successful to some extent,” Minch said. “It’s working better for those smaller cases, the frivolous ones where a doctor is included on a suit just because his name is on the chart, even though he wasn’t really involved in the care that much. Those kinds of suits, it looks like, are going away.”

But the new law has been of little benefit to doctors who care for high-risk patients.

“What we’re looking for in the state of Tennessee is a cap on non-economic damages,” Minch said. “We understand that it is fair for someone to get compensated for everything that they have lost – their earnings and their cost of care. They also deserve some amount of money in pain and suffering, which is hard to evaluate in dollars and cents. A lot of times, that judgment is made on an emotional basis.”

The TMA decided against trying to get a malpractice cap passed in the General Assembly this year.

“We don’t have anything that we’re actively pursuing this year because we see the committee structure being set up in the House in a way where we could not get it through,” Minch said. “The vote count on the committees that we need to have in our favor is not there.”

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